Incarcerated women face limited abortion access despite court rulings

A woman filed a federal lawsuit against a Tennessee sheriff last month who allegedly denied her access to an abortion while she was incarcerated in a county jail, The Tennessean reported on Tuesday. She is seeking $1.5 million in damages.

According to the court papers, the sheriff said the woman’s life wasn’t in danger and that her pregnancy was not the result of a crime. When Kei’Choura Cathey was released from jail, it was too late for her to have an abortion.

Her lawsuit claims that she had been subjected to unconstitutional cruel and unusual punishment, and that her 14th amendment right to choose had also been violated. Although inmates have a constitutional right to adequate health care and access to abortion, it’s not always clear that authorities will act accordingly, said Brigitte Amiri, senior staff attorney for the ACLU Reproductive Freedom Project. There is often doubt over who is responsible for covering the cost of both the procedure itself and transportation to an off-site medical facility.

“Any impediment to accessing abortion in jail is unconstitutional, and anything that would delay an incarcerated woman from getting an abortion is unconstitutional,” Amiri said. “Then there are more complicated nuances based on details of the cases.”

“Any impediment to accessing abortion in jail is unconstitutional.”

The U.S. Supreme Court has not reviewed any cases on the issue of abortion access for incarcerated people, which means that there is a lack of legal clarity on the issue. But the court has let decisions in favor of inmates’ abortion access stand. In 2005, Justice Clarence Thomas referred a Missouri case to the U.S. Supreme Court in which the state wanted to stop the transfer of a prisoner to a Planned Parenthood for an abortion. The high court refused to block the court-ordered transfer.

In 2004, a woman was refused a first-trimester abortion by corrections officials in Maricopa County, Arizona because the county banned off-site “elective medical procedures.” The county added that they only provided transportation when off-site procedures were “medically necessary.” The Superior Court of Arizona, Maricopa County struck down the jail’s policy in 2005 and the Arizona Court of Appeals upheld the decision in 2007. In 2008, the U.S. Supreme Court refused to review the lower court decision. In both this case and the Missouri case, the women were supported by the ACLU.

In the Arizona case, Sheriff Joe Arpaio of the Maricopa County Jail defended his actions by saying he did not “run a taxi service from jail to an abortion clinic and back.” The ACLU argued the jail could not condition transport on whether or not a woman could come up with the money to pay for it. The state appeals court noted that the woman offered to pay for the procedure herself and wrote in its decision, “The county regularly transports inmates for court appearances, compassionate visits and non-emergency, medically necessary treatment … Transportation for abortion services are a negligible fraction of the overall transportation the county performs each year.”

“It’s fine to charge her and take it out of account later, but you can’t deny access based on requiring an incarcerated woman to come up with the cost of payment for the transportation itself,” Amiri said.

As for the paying for the procedure itself, the Third Circuit U.S. Court of Appeals found in 1987 that correctional facilities must fund requested abortion procedures if a woman does not have the money and is unable to raise it. The court ruled that under the eighth amendment, “[if] the governmental entity can obtain the medical care needed for a detainee only by paying for it, then it must pay.”

“He compared accessing an abortion to getting a nose job.”

There are two possibilities for why the sheriff told Kei’Choura Cathey she would not receive an abortion because her life was not in danger and her pregnancy was not the result of a crime, Amiri said. Although abortion is an important medical procedure, many local and state authorities may not see it as such. Amiri gave the example of Arpaio’s response to an abortion request.

“He compared accessing an abortion to getting a nose job. So this idea that this is a cosmetic or elective procedure does pervade some of the responses we’ve seen from jails and prisons,” Amiri said.

Officials may also be cautious about the issue of funding because the Hyde Amendment sets limitations on the use of federal money for abortions. The Federal Bureau of Prisons can’t cover the cost of an abortion, except for in a few rare exceptions.

“The issue of who pays for the abortion itself is more complicated because of state and federal limitations for funding for the abortion procedure itself,” Amiri said. “Unfortunately, right now any federal funding can’t be used toward abortion unless the woman’s life is in jeopardy or is a survivor of rape and incest.”

State-level abortion restrictions and requirements for incarcerated women to submit requests — and, often, get court orders — can delay the procedure, effectively raising more barriers. In states where clinics are scarce, transportation may be costly, and incarcerated women don’t have a lot of resources to tap into. Incarcerated women had a median annual income of $13,890 before they were incarcerated, according to a 2015 report from the Prison Policy Initiative, a non-profit that opposes mass criminalization. Additionally, many women won’t able to secure the help of the organizations like the ACLU, and those who do pursue legal action may run out of time to get an abortion.

The problem will only grow as the population of women behind bars increases. There are 14 times as many women in jail now than there were in 1970, according to a report from the Vera Institute of Justice and the Safety and Justice Challenge released last year. The population of women in small county facilities is 31 times larger than it was in 1970.